Public-Private Partnership As A Legal Concept And Its Features In The Civil Law Of The Russian Federation And Central Asian Countries And Issues Related To Due

Summary

This article studies the international experience, as well as
the experience of Russia and the Central Asian countries in
understanding the mechanism of public-private partnership
(‘PPP’)1 in the doctrine of law, as well as in
its implementation at the legislative level, including in view of
the ongoing work on the SPP legislation harmonisation in different
regions. The author states that with the lack of correct
understanding of SPP as a legal category by the domestic science of
civil law, properly enshrined in national legislation, the problem
of SPP ‘imitations’ is inevitable. At the same time, a
correct understanding of SPP as a phenomenon is only possible in
view of the international practice and is achievable using the
comparative law method. The article, therefore, raises the issue of
a correct understanding of the SPP phenomenon and its qualifying
features, which make it possible to distinguish it from related
legal institutions, as well as the problem of the correct
qualification of investment agreements with the participation of
public legal entities as SPP agreements. The author founds that in
Russia and the Central Asian countries, the approach to
understanding SPP differs from the internationally recognised one,
since the emphasis is on the content rather than the form, i.e., on
the essence of SPP, as a special type of joint investment activity
of the state and private business, which must meet certain
criteria, and not as a kind of government contract. The article
also concludes that, from the point of view of the global science
of private law, SPP should be qualified as a complex legal
institution of sui generis legislation, while a PPP agreement in
Russia and all Central Asian countries should be qualified as a
defined mixed contract that has a strictly private law nature. It
is noted that the choice of the private law model for the
development of the SPP agreement institution in Russia and the
countries of Central Asia is obviously justified by the fact that
the priority goals in these specific societies at this historical
moment are to increase private interest and initiative, i.e., the
preference is reasonably given to ‘social value’ of private
law over the ‘social value’ of public law. Therefore, in
any legal order, state-private partnerships must be distinguished
from the overall mix of related legal institutions as a complex
legal institution using the seven SPP features established at the
legislative level, which are described below in detail. At the same
time, to qualify any investment agreement with the participation of
a public legal entity as an SPP agreement, such an agreement shall
be concluded in the procedure and on the terms established by the
relevant national SPP law or the law on concessions.

1. Topic Relevance

Since the Soviet Union collapse in 1991, the Central Asian
countries and Russia have been in constant search and adjustment of
optimal legal mechanisms for attracting private capital to create
and upgrade public infrastructure. Apart from the fact that all
these countries have laws on concessions2 , as well as
other contractual forms of investment agreements with the
participation of public legal entities, there are specialised laws
on state-private partnerships (‘SPP’) adopted in Tajikistan
in 2012, in Kazakhstan and Russia in 2015, in Uzbekistan in 2019,
and in Kyrgyzstan and Turkmenistan as recently as 20213
. The formation and development of the SPP institution in the
doctrine and dogma of civil law in the Central Asian countries and
Russia is of particular interest for research, since over the past
thirty years these states have already accumulated original
experience in implementing the SPP phenomenon in national
legislation, and Russia and Kazakhstan already have the law
enforcement practice in the SPP area.

The solution of the problem of determining the legal nature and
qualifying features of SPP that allow it to be distinguished from
related legal institutions are of particular interest. Without a
correct understanding of SPP and the SPP agreement as related legal
categories by the domestic science of civil law, properly enshrined
in national legislation and public policy instruments in the SPP
area, both the abuse of the SPP mechanism by corrupt civil servants
and dishonest business representatives, as well as the general
inefficiency of using the SPP mechanism, even in the absence of any
malicious intent on the part of the persons participating in SPP
projects are inevitable. A good example of such an unsuccessful SPP
development is still Kazakhstan So, due to the uncontrolled growth
of ‘imitated’ SPP projects in Kazakhstan, the head of state
– KassymJomart Tokayev, admitted in 2019 that in Kazakhstan
“the very idea of SPP is discredited”4 . In
Russia, the SPP institution is also developing not without
problems, as can be seen from the resonant so-called ‘Bashkir
Case’, ‘Tuvin Case’ and ‘KhMAO Case’, where at
the initiative of the antimonopoly authority the generally accepted
understanding of the concession was subjected to the risk of
revision5 .. Thereat, the question remains open since in
Russia there is still no confidence that the courts are not allowed
to use the mechanism for re-qualifying concession agreements into
state contracts for the purpose of terminating concession
agreements or declaring them invalid.

2. PPP Concept and its Features in the Global Best
Practices

There is, obviously, no one in the world still has an
unambiguous answer to the question of what SPP is, neither lawyers
nor economists6 . Moreover, there is still not even a
single and universally recognised definition for the SPP
phenomenon, not to mention a universally accepted legal term of
PPP. For example, alternative names for the SPP include, among
others, ‘P3’ in North American countries, ‘private
financial initiative’ (PFI) in the UK, Japan and Malaysia,
‘private participation in infrastructure’ (PPI) in South
Korea and so on7 . Therefore, it is not surprising that
SPP is understood differently in different countries, but,
nevertheless, there is an obvious trend towards harmonisation of
SPP laws of the world countries both at the regional and global
levels, including the unification of the SPP as a legal concept.
First of all, it is worthy to note the so-called ‘UNCITRAL
Model Legislative Provisions on Public-Private Partnerships’,
as well as the ‘UNCITRAL Legislative Guide on Public-Private
Partnerships’ adopted in 2019 by the United Nations Commission
on International Trade Law (UNCITRAL), which are designed to help
in creating a legal framework that is conducive to public-private
partnerships (PPPs).

2.1. SPP Concept in the Global Best Practices

The UNCITRAL Model Provisions define PPP, which is treated as an
“agreement”, i.e., in essence, a civil law contract
between a so-called ‘corporate customer’ and a private
entity8 . This UNCITRAL definition may, most likely, be
considered as an internationally recognised legal definition of SPP
over time, given the international authority of UNCITRAL and its
work on the unification of SPP legislation in the world.

Thereat, the concepts of «PPP» and «PPP
contract», according to UNISTRAL, are essentially synonymous,
since both of these terms mean exactly an agreement between a
corporate customer and a private entity9 . Considering
that an agreement and contract are institutions of private law,
UNCITRAL thus obviously emphasises the private law nature of SPP.
In particular, according to

UNCITRAL, an SPP agreement appears to be a mixed contract, since
the UNCITRAL Guide clarifies that the term PPP should be understood
as “a wide range of contractual relationships” and that
“PPPs are not a particular new category of governmental
contracts. In fact, PPPs may use various well-known contractual
arrangements (lease agreements, concessions, service agreements,
turnkey contracts, DBFO contracts)”10. Given that
UNISTRAL proceeds from the private law principles of SPP, it
understands the SPP precisely as a special type of investment
agreement between a state customer and a private partner. The
UNCITRAL Model Provisions leave it up to the state that enacts
national PPP law based on the provisions to provide an exhaustive
or indicative list of economic sectors in which PPP contracts may
be entered into11 .

Footnotes

1. The term ‘public-private partnership’ (PPP) is
used as a synonym to the term ‘state-public partnership’
(SPP) for the purpose of this article. The term ‘SPP
agreement’, respectively, for the purposes of this article
means any agreement officially recognised as a public-private
partnership agreement in the relevant jurisdiction.

2. See: 1) The Law ‘On Concessions’, dated 7 July
2006, No. 167-III. 2) The Law of the Kyrgyz Republic ‘On
concessions and concession enterprises in the Kyrgyz Republic’
dated 6 March 1992, No. 850-XII. 3) The Federal Law of the Russian
Federation ‘On concession agreements’ dated 21 July 2005,
No. 115-FZ. 4) The Law of the Republic of Tajikistan ‘On
Concessions’ dated 26 December 2011, No. 783. 5) The Law of
Turkmenistan ‘On Foreign Concessions’ dated 1 October 1993,
No. 859-XII.

3. The following laws were adopted (in order of
priority): 1) the Law of the Republic of Tajikistan, dated 28
December 2012, No. 907 ‘On State-Private Partnership’, 2)
the Law of the Republic of Kazakhstan, dated 31 October 2015, No.
379-V ZRK ‘On State-Private Partnership’ , 3) the Federal
Law, dated 13 July 2015, No. 224-FZ ‘On State-Private
Partnership, Municipal-Private Partnership in the Russian
Federation and Amendments to Certain Legislative Acts of the
Russian Federation’, 4) the Law of the Republic of Uzbekistan,
dated 10 May 2019 , No. ZRU-537 ‘On StatePrivate
Partnership’, 5) the Law of the Kyrgyz Republic, dated 11
August 2021, No. 98 ‘On State-Private Partnership’, 6) the
Law of Turkmenistan, dated 5 June 2021, No. 379-VI ‘On
State-Private Partnerships’.

4. The Speech by the Head of State K. Tokayev at the
extended meeting of the Government on 15 July 2019. Official
website of the President of the Republic of Kazakhstan. Available
at: https://www.akorda.kz/ru/speeches/internal_political_affairs/in_speeches_and_addresses/vystuplenie-glavygosudarstva-k-tokaeva-na-rasshirennom-zasedanii-pravitelstva

5. The Resolution of the Ninth Arbitration Court of
Appeal dated 4 September 2017, No. 09AP-33753/2017, 09AP34801/2017
in case No A40-23141/17 (‘Bashkir case’). The Resolution of
the West-Siberian district Arbitration Court, dated 14 February
2020, No. F04-162/2020 in case No. ?45-2242/2019. (‘Tuvin
Case’) The Judgment of the Arbitration Court of the
Khanty-Mansiysk Autonomous District – Yugra, dated 2 July 2021, in
case No. A75-984/2021 (‘KhMAO Case’).

6. Many researches note the multidisciplinary nature of
SPP as the main problem in a common understanding of SPP by
economists, lawyers, political scientists, financiers, etc. For
example: D. De Clerck & E. Demeulemeester & W. Herroelen,
2012. “Public Private Partnerships: Look before you Leap into
Marriage,” Review of Business and Economic Literature,
Intersentia, vol. 57(3), P 248.
https://ideas.repec.org/a/sen/rebelj/v57i3y2012p249-262.html
Osborne, Stephen. (2000). Public Private Partnerships: Theory and
Practice in International Perspective. London: Routledge. P. 10.
Mouraviev, N., & Kakabadse, N. (2016). Conceptualising
public-private partnerships: A critical appraisal of approaches to
meanings and forms. Society and Business Review, 11(2), PP 155-173.
Kochetkova S.A. State Private Partnerships: Textbook. ? ?.:
Publishing House of the Natural Science Academy, 2016. – 174
p. Gromova Y.A. State-Private Partnership and Its Legal Forms:
Textbook. M.: Yustitsinform, 2019

7. E.R. Yescombe, Edward Farquharson. Public-Private
Partnerships for Infrastructure (Second Edition),
ButterworthHeinemann, 2018, ISBN 9780081007662, https://doi.org/10.1016/B978-0-08-100766-2.00002-4.
P 10.

8. UNCITRAL Model Legislative Provisions on
Public-Private Partnerships. Available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/ru/19-11013_mlpppp_r.pdf.
P 1.

9. Ibid. P 2.

10. UNCITRAL Legislative Guide on Public-Private
Partnerships. Available at: https://uncitral.un.org/ru/lgppp. P
6.

11. Ibid. P 3.

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